Sakeliga and NEASA file ConCourt appeal on Employment Equity ruling

Sakeliga and NEASA have filed applications for leave to appeal the High Court’s flawed Employment Equity (EE) judgment.

The simultaneous applications for leave to appeal to the Supreme Court of Appeal and the Constitutional Court follow the High Court’s refusal in August to grant an urgent interdict against the EE regulations and numerical sectoral targets.

Together, these establish employment quotas on race, sex, and disability with serious harm to affected individuals, businesses, and the economy generally.

There are numerous grounds upon which the appeals against the judgment rest. These include, among others:

1. The High Court erred in finding that the application was not a constitutional matter. In fact, the case is relevant to Constitutional provisions, including those on freedom of trade, the scope of ministerial powers, and matters of administrative justice.

2. The Court mistakenly found that it lacked the power to interdict or suspend the operation and implementation of the EE regulations and targets by the Minister.

In an egregious error, the Judge ruled that the Court has no power to interdict or suspend the consequence of an unlawful administrative action, purely because “it has already happened” – as the judge described it, “the horse has already bolted”. This ruling is unsound, has far-reaching consequences for administrative justice in South Africa, and would set a dangerous precedent if left to stand.

3. The applicants raised five grounds of unlawfulness of the Minister’s administrative actions, while the Court incorrectly cited and considered only the first three of the five grounds listed here:

Firstly, draft targets were not published as required by the EE Act.

Secondly, the Minister did not properly consult with the sectors.

Thirdly, the targets and regulations unfairly discriminate against women, who are designated a protected group.

Fourthly, the targets fail to adequately account for the unique and particular circumstances of each economic sector and/or subsector.

Lastly, the Minister failed to obtain and consider a comprehensive socio-economic impact study on the impact of the targets.

Due to the inaccurate appraisal and incorrect consideration of the grounds of unlawfulness, the Court delivered a defective judgment.

The court erred by failing to find that the applicants had established strong prospects of success in the review on any of the above-listed grounds.

The targets and regulations became operational on 1 September 2025, which means that, due to the High Court’s dismissal of the applicants’ case, these unlawful targets now need to be considered by all designated employers for their EE plans and reports. Consequently, every employee and prospective employee of a designated employer who falls in a racial or gender group that is ‘overrepresented’ in an occupational level of that employer will suffer harm and discrimination due to these targets. They will not be promoted or find employment if that employer attempts to comply with the targets.

Moreover, due to the generally detrimental effects on designated businesses, the harm also extends to non-overrepresented employees, owners, clients and customers.

In its judgment, the High Court effectively places the responsibility for discrimination due to the numerical targets not at the feet of the Minister who sets and enforces them, but at the feet of employers who attempt to achieve or comply with the targets.

In doing so, the Court demonstrated a remarkable failure to appreciate the essence of the matter. The new legislation and regulations force employers to use not their own “numerical goals” but the Minister’s compulsory 5-year “goals.” The Court found, however, that “[i]t will be the setting of numerical goals, which is the statutory function of an employer, that may lead to a disadvantage of women.”

The Minister has 10 days to file a response to the application for appeal to the Constitutional Court. A date for the hearing of the application for leave to appeal in the High Court has not yet been set.

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